Shapiro Arato Bach Prevails In Second Circuit Against Suit Claiming Drake Improperly Sampled Work Of Jazz Artist Jimmy Smith

On February 3, 2020, the Second Circuit ruled in favor of Shapiro Arato Bach clients in a fair use copyright case concerning the transformative use of a spoken-word piece.

In Estate of James Oscar Smith v. Aubrey Drake Graham, the heirs of jazz musician Jimmy Smith and a company that acquired rights to one of his alleged works sued the rap artist, Drake, his record label, Cash Money Records, Inc., and others, over the use of an edited section of Smith’s spoken word piece, “Jimmy Smith Rap,” at the start of a seven-minute hip hop song, “Pound Cake,” featuring Drake and fellow rap artist Jay-Z. The Second Circuit held that the use of “Jimmy Smith Rap” on “Pound Cake” was a “fair use.” It found that Drake had transformed the original work by altering its message about the “supremacy of jazz to the derogation of other types of music” to celebrate “all ‘real music,’ regardless of genre.” This “imbue[d] [the original] with a character, different from that for which it was created.” The appellate court also found that “Pound Cake” used no more than was reasonable, that the two works appealed to different audiences, and that there was no evidence that “Pound Cake” usurped demand for the “Jimmy Smith Rap.”

The unanimous Second Circuit decision affirmed a May 2017 decision by Judge William H. Pauley III of the Southern District of New York.

Shapiro Arato Bach partner Cynthia S. Arato represented Cash Money Records, Inc., Universal Republic Records, Universal Music Group Distribution, Corp., and Universal Music-MGB NA, LLC in the district court and on appeal.

The decision can be found here.